It's been a momentous, startling and exasperating two weeks. The Supreme Court ended the term with three blockbuster decisions, and U.S. Citizenship and Immigration Services (USCIS) held a less-noticed public engagement that knocked the socks off one important segment of the stakeholder community.

Each of these events -- though some are quite positive -- carries seeds of concern that are likely to sprout noxious weeds within the immigration ecosphere for years to come. Here, then, are what pleases and what remains lodged in my craw.

The Arizona Ruling

The Court put a brake on most state laws that interfere with federal sovereignty over immigration. Now, perhaps, grandstanding politicians in state legislatures and cities will think twice before wasting precious resources defending laws that harm business and damage a state's brand, while victimizing U.S. citizens and mixed-status families. Moreover, in prose almost resembling poetry (to my ears at least), the Court majority offered a paean to American immigration (hyperlink added):

The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.

[In] the State’s most populous county, [unauthorized] aliens are reported to be responsible for a disproportionate share of serious crime. See, e.g., Camarota & Vaughan, Center for Immigration Studies, Immigration and Crime: Assessing a Conflicted Situation 16 (2009) (Table 3) (estimating that unauthorized aliens comprise 8.9% of the population and are responsible for 21.8% of the felonies in Maricopa County, which includes Phoenix).

The Health-Care Decision

The word "immigration" came up but once in the opinion -- a comparison of Congress's comparative authority under its constitutional power to tax and to regulate commerce:

[A]lthough the breadth of Congress’s power to tax is greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes. (Emphasis added.)

At first glance, the Affordable Care Act's implications for immigrants seem obvious. The legislation benefits legal immigrants and leaves out the undocumented. As of 2014, it provides legal immigrants with subsidies to purchase insurance, requiring them, like other Americans, to maintain coverage and offering them access to state insurance exchanges. But the law denies undocumented immigrants any subsidies or even the use of the exchanges to buy insurance with their own money.

The full story, though, is more complicated. The act leaves in place a five-year waiting period for legal immigrants to qualify for Medicaid and the Children's Health Insurance Program. As a result, though they will be able to use the exchanges to purchase subsidized coverage, many recently arrived legal immigrants with incomes below or near the poverty line are likely to remain uninsured for want of resources to pay their share of the costs. Yet because the act provides substantially increased aid to community health centers, it may help many immigrants -- both legal and undocumented -- receive medical care even without insurance.

The Montana Slam Down

This decision -- which says nothing directly about immigration -- is shocking not so much for its jurisprudence as its tone-deaf disregard of the damage caused by the tsunami of anonymously donated sums unfairly determining the outcome of countless federal and state elections in the wake of Citizens United. Immigration reform -- like every other policy decision facing post-Citizens United America -- will be derailed by the corrupting influence of secret money in politics and its foreseeable result: infinitely pliable legislators bending to the will of their unnamed masters.

The EB-5 Engagement with Economists

Historians of the EB-5 visa know that this benighted category has witnessed persistent government ineptitude from its inception. In its early years, a series of former immigration officials teased informal guidance letters from naïve or inattentive occupants of the INS general counsel's office allowing all sorts of riskless forms of creative financing to serve, improperly, as qualifying $500,000 or $1 million investments. Not surprisingly, EB-5 fraud schemes flourished. That jig was up when a quartet of precedent decisions outlined a new set of EB-5 rules. Now in its twenty-secondth year, the EB-5 program and its growing population of stakeholders still beg for publication of clear and reasonable regulations that maintain the integrity of the category yet are faithful to its legislative text, history and purpose, and are applied with consistent standards of interpretation. Even the most jaundiced audience members at the June 22, 2012 engagement came away dumbfounded, however, by the breadth of the economists' pronouncements of new and extreme extralegal interpretations and requirements. As a partial transcription of the presentation and later Q & A reveals, the government's supposedly economics-based interpretation of how investments lead to job creation has taken on such a miserly cast that it will out-Scrooge Scrooge. Truth be told, I'm no economist and I have no formal training on when a new job is "created." (In parochial school, I learned that only God can create; in public school, I learned that neither matter nor energy can be created.) But I understand the painful yet salutary principle of capitalism known as "creative destruction" espoused by economist Joseph Schumpeter, namely, that there will be winners and losers, but ultimately more innovation, prosperity and jobs will ensue. (Phrased more prosaically, I would put it that "if you want to make an omelet you need to crack a few eggs.") Despite my lack of training in the mathematics of job creation, I understand, as the Obama administration confirms, that counting newly created jobs is not an exact science but rests on a variety of arguable presumptions and inferences. I also accept the precept that investments in America will more readily be made if the laws regulating the investment are not ever-changing, impracticable, unclear or arbitrarily applied. Sadly, however, as commenters on the EB-5 engagement have noted, the USCIS economists' rabbit-from-the-hat proclamations have been "startling," are affected by fear and nervousness, and made it "riskier for Regional Centers to do any development type of EB-5 projects. [and] . . . [harder] for potential EB-5 investors to ascertain whether an EB-5 project complies with the EB-5 requirements."

My view, which I shared with USCIS leadership, is this: With all respect to the economists and to your fine team, there really needs to be an engagement that discusses fundamental legal principles that take into account the law, the legislative history and the purpose of the EB-5 program. The direction the economic analysis is going -- in my view -- will destroy the program and hurt its salutary goals of investment and job creation in the United States. * * * As you can see, it's been a long and exhausting two weeks. I need a vacation! Guest posts (well-written and edgy) are welcome.

We were almost correct. In a 5-3 ruling (with Justice Kagan recusing), the Supreme Court invalidated most of the provisions of SB 1070 on the grounds that they were preempted by federal law such as criminalizing the failure to carry registration documents (section 3), criminalizing an alien’s ability to apply for or perform work (section 5(c)), and authorizing state officers to arrest a person based on probable cause that he or she has committed a removable offense (section 6). On the other hand, the Supreme Court, 8-0, narrowly upheld section 2(B), the “show me your papers” law, which requires state officers to make “a reasonable attempt….to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Section 2(B) further provides that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released.”

Before we analyze the Court’s narrow upholding of section 2(B) and how it would impact the federal government’s prosecutorial discretion policies, the following extract from Justice Kennedy’s majority opinion acknowledging the federal government’s ability to exercise prosecutorial discretion is worth noting:

A principal feature of the removal system is the broad discretion exercised by immigration officials…... Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal….

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

Arizona v. USA, supra, Slip Op. at pages 4-5.

It is indeed unfortunate that despite noting the role of the federal government in formulating immigration policy, the Court did not, at least for the moment, invalidate 2(B), which essentially legalizes racial profiling. See US v. Brignoni-Ponce, 422 US 873 (1975) (Mexican ancestry on its own cannot be an articulable fact to stop a person). The Court was obviously mindful of concerns relating to racial profiling, but the case that the United States brought against Arizona is more about whether federal immigration law preempts 2(B) and the other provisions of SB 1070. Both conservative and liberal justices did not think so since 2(B) was not creating a new state immigration law as the other invalidated provisions did. All that 2(B) does is to allow Arizona police officers to determine if someone was unlawfully present in the context of a lawful stop by inquiring about that person’s status with the federal Department of Homeland Security, and such communication and exchange of information has not been foreclosed by Congress.

The question is whether 2(B) will interfere with the federal government’s dramatic new prosecutorial initiative to not deport over a million young undocumented people if they met certain criteria. The June 15 memorandum on deferred action directs the heads of USCIS, CBP and ICE to exercise prosecutorial discretion, and thus grant deferred action, to an individual who came to the United States under the age of 16, has continuously resided in the US for at least 5 years preceding the date of the memorandum and was present in the US on the date of the memorandum, and who is currently in school, or has graduated from school or obtained a general education certificate, or who is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States. Moreover, this individual should not be above the age of thirty and should also not have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety. This directive further applies to individuals in removal proceedings as well as those who have already obtained removal orders. The grant of deferred action also allows the non-citizen to apply for employment authorization pursuant to an existing regulation, 8 CFR § 274a(c)(14).

Even though the new deferred action policy has not been implemented, the memorandum instructs ICE and CBP to refrain from placing qualified persons in removal proceedings or from removing them from the US. How does this very explicit instruction to ICE and CBP officials square with Arizona’s section 2(B)? While Justice Scalia, who fiercely dissented and blasted the Obama administration from the bench, saw no need for preemption of any of Arizona’s provisions based on the federal government’s ability to exercise prosecutorial discretion, the majority, fortunately, were more mindful of this factor. Suppose a young DREAMer who prima facie qualifies under the deferred action program was stopped for jaywalking in Tuscon, and the Arizona police officer had a reasonable suspicion that her presence was unlawful, would it be reasonable for the police officer to detain this person even though she would not ordinarily be detained for the offense of jay walking? Even if the Arizona officer could query ICE about her status, how long would it take for ICE to respond? Moreover, even though she may qualify for the deferred action program, how would ICE be able to tell if there is no record of her application at all? DHS has yet to even create an application process, but it has instructed its officers from immediately refraining placing such persons in removal proceedings or removing them from the US. Even once an application is lodged, it may take weeks or months before the DHS is able to grant deferred action. While this person should not be apprehended by the federal government under its deferred action policy, Arizona could potentially hold her.

But not for long. The majority explicitly held that 2(B) should be read to avoid the hold of a person solely to verify his or her immigration status. The Court noted in connection with the jaywalker hypothetical, “The state courts may conclude that unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry.” Slip Op. at 22 (citation omitted). Even in a case where a person is held in state custody for a non-immigration offense, the Court cautioned that the delay in obtaining verification from the federal government should not be a reason to prolong that person’s detention. The Court also suggested that 2(B) ought to be “read as an instruction to initiate a status check every time someone is arrested…rather than a command to hold the person until the check is complete no matter the circumstances. Slip Op. at 23. This temporal limitation harkens back to the Court’s rationale for justifying warrantless stops by roving patrols in the border regions with Mexico in Brignoni-Ponce:

The intrusion is modest. The Government tells us that a stop by a roving patrol "usually consumes no more than a minute." Brief for United States 25. There is no search of the vehicle or its occupants, and the visual inspection is limited to those parts of the vehicle that can be seen by anyone standing alongside…(citation omitted) . According to the Government ;"[a]ll that is required of the vehicle's occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States. 422 US at 880.

Finally the Court noted that its opinion did not foreclose other preemption and constitutional challenges as the law as interpreted and applied after it goes into effect. This is particularly the case if delay in the release of a detainee flowed from the requirement to check their immigration status. Indeed, it is only if such status verification took place during a routine stop or arrest and could be accomplished quickly and efficiently could a conflict with federal immigration law be avoided.

As for Justice Scalia, who concurred with the majority on 2(B), but also dissented as he would have upheld all of the other provisions, it is ironic that he is willing to have Arizona add to penalties imposed by Congress but not willing to let the President, a co-equal branch whose role in federal immigration policy is certainly less subject to challenge than that of the states, relieve the harsh impact of such penalties for a discretely delineated protected class. It is also ironic that the Administration is actively moving ahead to find an administrative solution to our broken immigration system by granting DREAM act relief while Arizona seeks to uphold its right to put in place an enforcement mechanism it may not seek to enforce, if only to avoid further constitutional challenge.

It does not require a crystal ball to imagine that 2(B), if enforced, will cause mayhem for young DREAMers and their ability to remain in the US through further administrative remedies, despite the Court’s narrow upholding of the provision. It will be difficult, if not impossible, for ICE to communicate with certainty to overzealous Arizona officials like Sheriff Joe that a young person who qualifies for the deferred action program is not unlawfully present. In fact, such a person continues to be unlawfully present even though he or she may qualify for deferred action presently, prior to the filing of the application. Moreover, even after an application is filed, it is not clear how long DHS will actually take to grant deferred action and such a person will still remain unlawfully present during the pendency of the application. Although the grant of deferred action stops unlawful presence for purposes of the federal 3-10 year bars to reentry, it is not clear whether the Arizona definition of lawful presence would recognize someone who has an outstanding removal order but who has also been granted deferred action. This situation, and many others, such as a potential US citizen being detained for being suspected of being unlawfully present, will result in further challenges to 2(B), which hopefully, the next time around, will be successful.

The Court upheld 2(B) because there was no evidence that Arizona was yet enforcing it. Indeed, for all practical purposes, it had yet to go into effect. Given the natural judicial reluctance to fray the bonds of federalist comity, the Supreme Court stayed its hand for now so that state courts could determine whether SB 1070 could be consistently administered within the straitjacket of the Supreme Court’s ruling. So, in this sense, the issue was not ripe for a determination on pre-emption. When will this change? How many will have to suffer the consequences before the Supreme Court will act? For this reason, knowing what the future will bring, the nation and its liberties would have been better served if 2(B) had been invalidated. It is hard to imagine how Section 2(B) can survive if and when Arizona tries to make it come alive. Let us not forget that, despite Arizona Governor Brewer’s protestation to the contrary, the real guts of this law, the warrantless arbitrary arrest powers granted by Section 6, did not survive today. The rule of law did. The status check authorized by Section 2(B) can only happen after there is probable cause to believe that a non-immigration law violation has taken place, and they happen very quickly so as not to prolong any stop or detention. For all our concerns, and despite our fondest hopes for a more sweeping victory, the Supreme Court has reaffirmed our oldest national tradition, that here in America, there is still much room to dream- in Arizona and beyond.

[Blogger's note: Whether by dint of nature or nurture, lawyers love to argue; immigration lawyers perhaps more so. Unlike our colleagues (outside of immigration practice) for whom sources of law are better defined, immigration attorneys can access a wider array of law and non-law sources with which to fashion our pro and con arguments.

As a change of pace from this blog's usual fare of criticizing immigration agencies and Congress, today we'll offer a PG-rated point/counterpoint with guest blogger, Karin Wolman, and me (Disclosure: Neither of us is depicted in the photo). We debate the oft-posed question whether a foreign citizen while living in the United States and holding one of any number of categories of U.S. nonimmigrant status who are not expressly authorized to work can nonetheless be employed by and serve a foreign employer. This might, for example, include:

a spouse on a dependent visa whose other half is lawfully employed on a work visa;

a B-2 or WT (visa waiver) visitor for pleasure vacationing in the U.S. who must attend to emails sent by a customer of the visitor's foreign employer;

a B-1 or WB (visa waiver) visitor for business who must assign or supervise work to be performed abroad;

an F-1 student who is sent by her employer abroad to study for an MBA; or

an H-1B work visa holder who (although authorized to work for a specific U.S. employer) is not expressly permitted to moonlight for an employer abroad.

May a foreign national without work-authorized visa status to work remotely from a home located in the United States for an employer located abroad? This question lies squarely at the intersection of immigration & tax law, and the short answer is no, except for nonimmigrants in the F-1 (Academic Students), J-1 (Exchange Visitors) & Q (Cultural Exchange Participants) visa categories. May a foreign national without work-authorized visa status to work remotely from a home located in the United States for an employer located abroad? This question lies squarely at the intersection of immigration & tax law, and the short answer is no, except for F, J & Q nonimmigrants. For the individual, the foremost reason why not is spelled out in Chapter 3 of IRS Publication 519, US Tax Guide for Aliens. Any income from services performed for a foreign employer by someone present in the United States is deemed “US source income” unless that income meets ALL THREE of the following conditions:

total annual earnings from such services is less than $3,000;

the nonresident alien is physically present in the United States for not more than 90 days in the year;

the services are performed under contract with a nonresident alien individual, foreign partnership or foreign corporation.

This tax rule interacts with the visa rules in the following way: Many nonimmigrants, such as B-1/B-2 visitors, and certain dependent spouses of temporary workers, such as those in H-4 or O-3 status, are ineligible to apply for work authorization in the United States. For the H-4 or O-3 visa holder, here accompanying a spouse who is lawfully employed in the US, such a person is likely to be physically present in the United States for all or most of the year, rather than under 3 months. Their visa status does not permit them to earn any “US source income.” If they do earn any significant income from a foreign source while spending most of the year here, it will be considered “US source income” because they are located here, and it will be taxable here. From the immigration perspective, earning any US source income would be considered freelance “self-employment” (since there is no U.S. employer) and it would be considered a visa status violation. That income, revealed later on the couple’s US income tax return, could render the non-work-authorized spouse ineligible to adjust status to lawful permanent residence under INA 245(c).

There is one important carve-out for foreign students and exchange visitors present in the United States under F, J or Q nonimmigrant visa status. These nonimmigrants, including their spouses and children in a dependent visa classification, are permitted to exclude from their U.S. gross income any pay received from a foreign employer. This group includes a wide assortment of students, scholars, trainees, interns, teachers, professors, researchers and research assistants, or leaders in a field of specialized knowledge or skill. F, J & Q nonimmigrants and their dependents may work from home for a foreign employer, and are not considered to have earned any US source income by doing so.

The ramifications for the foreign employer are much more significant, and involve overlapping global mobility issues of tax, immigration, corporate, and employment laws. The foreign company must determine how to obtain the appropriate visa status for its worker so it can have an employee legally residing and working in the United States. This in turn will require the foreign company to have some type of corporate entity or branch office doing business in the United States. In addition to establishing a legal presence in the United States, the foreign company must identify what other taxes its U.S. entity may be subject to, in addition to payroll tax, how that will affect treatment of corporate income of the foreign entity, and whether they can avoid double-taxation by means of a tax treaty. The foreign employer must consider local employment and contract laws in the jurisdiction where the employee is located in the United States, as the employee’s physical location determines which laws apply.

*CAVEAT* I am an immigration attorney, not a tax attorney or accountant. Please seek advice on the tax implications of your specific situation from a qualified tax professional.

Can I Work from Home for a Foreign Employer?[Angelo Paparelli's reply]

Can a nonimmigrant who lacks authorization by U.S. immigration authorities be employed in the U.S. to work from his or her home in the U.S. for a foreign employer abroad? My lawyerly answer is: It depends. The question is not one of tax law. The tax laws and immigration statutes have each been enacted for distinct purposes, and one legal regimen does not necessarily inform the other. Rather than taxation, the laws of employment and of immigration apply, as well as a subject of law study known as "conflicts of law."

Phrase the question thusly and the answer may well be different from the one Karin offers:

Does U.S. immigration law prohibit a foreign citizen from fulfilling an employment agreement with a company incorporated and doing business abroad?

Before answering, assume the agreement specifies that the required activities will involve creating and saving work product, through the use of a web browser in "the cloud," with the cloud's servers located on foreign soil.

Assume further that the agreement allows the foreign citizen to work from anywhere in the world, is made before the individual enters the U.S., and provides that salary payment shall be in a foreign (non-U.S.) currency with direct deposit into a foreign bank account and provides that the law of the foreign state and the courts of that state where the employer has its headquarters shall govern any disputes that may arise between employer and employee.

On these assumed facts, does the foreign employer or employee violate American immigration law if the employee fulfills his or her part of the bargain from a residence in the United States? My answer is: Probably not, because the mere fortuity that the work is performed from within the U.S. rather than in any other country is too slim a fact to give the U.S. under conflicts of law principles a legitimate interest in applying American law. After all, no American workers were harmed by the work performed under this contract.

As I read the INA, Congress has never expressly said that U.S. immigration law should be given extraterritorial effect. See EEOC v. Arabian American Oil Co., 499 U.S. 244, 111 S.Ct. 1227, 1230 (1991), in which the Supreme Court changed the longstanding presumption against the extraterritorial application of American law (unless a contrary intent appears) into a presumption against extraterritoriality (unless there is the affirmative intention of the Congress clearly expressed). To be sure, the U.S. immigration police would probably try to assert that a nonimmigrant who works from his U.S. home for a foreign employer on the facts I've posited has violated the immigration laws. But that doesn't mean the immigration cops would be right. I believe, nonetheless, that the federal judiciary would follow EEOC v. Arabian American Oil Co. and say that U.S. immigration law cannot be applied extraterritorially to prohibit that which is lawful on foreign soil.

[Karin Wolman's retort]

I fall unequivocally on the "unauthorized employment" side: The salary paid for the employment is active, earned income characterized by a combination of three factors -- provision of services for hire by the foreign national + physical presence in the US that is not brief nor intermittent + U.S. source income in exchange for provision of those services.

[Angelo Paparelli's rejoinder]

The real question then is not whether a foreign employer may employ a foreign citizen working in her American home without a work visa but WWTCD (What would the courts do)?

President Obama at last came through with a bold memorandum on June 15, 2012, executed by DHS Secretary Janet Napolitano, granting deferred action to undocumented people. The Administration has always had authority to grant deferred action, which is a discretionary act not to prosecute or to deport a particular alien. While critics decry that Obama has circumvented Congress, the Administration has always had executive branch authority to exercise prosecutorial discretion, including deferred action, which is an expression of limited enforcement resources in the administration of the immigration law. It makes no sense to deport undocumented children who lacked the intention to violate their status and who have been educated in the US, and who have the potential to enhance the US through their hard work, creativity and determination to succeed.

We have always advocated that the Administration has inherent authority within the INA to ameliorate the hardships caused to non-citizens as a result of an imperfect and broken immigration system. In Tyranny of Priority Dates, we argued that the Administration has the authority to allow non-citizens who are beneficiaries of approved family (I-130) or employment-based (I-140) petitions affected by the crushing backlogs in the priority date system to remain in the US through the grant of parole under INA 212(d)(5) based on “urgent humanitarian reasons or significant public benefits.” When the DREAM Act passed the House in 2010, but narrowly failed to garner the magic super majority of 60 in the Senate, we proposed that the President could also grant similar parole to DREAM children as well as deferred action in our blog, Keeping Hope Alive: President Obama Can Use His Executive Power Until Congress Passes The Dream Act.

The new memorandum directs the heads of USCIS, CBP and ICE to exercise prosecutorial discretion, and thus grant deferred action, to an individual who came to the United States under the age of 16, has continuously resided in the US for at least 5 years preceding the date of the memorandum and was present in the US on the date of the memorandum, and who is currently in school, or has graduated from school or obtained a general education certificate, or who is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States. Moreover, this individual should not be above the age of thirty and should also not have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety. This directive further applies to individuals in removal proceedings as well as those who have already obtained removal orders. The grant of deferred action also allows the non-citizen to apply for employment authorization pursuant to an existing regulation, 8 CFR § 274a(c)(14).

While this memorandum is indeed a giant step in providing relief to a class of immigrants who have been out of status for no fault of their own, we propose other incremental administrative steps so that such individuals, even after they have been granted deferred action and work authorization, can obtain permanent residence. We are mindful, as the accompanying FAQ to the memorandum acknowledges, that the grant of deferred action does not provide the individual with a pathway to permanent residence and “[o]nly the Congress, acting through its legislative authority, can confer the right to permanent lawful status.” But just as people were skeptical about our ideas for administrative action when we first proposed them, some of which has come to fruition, we continue to propose further administrative steps that the President can take, which would not be violative of the separation of powers doctrine.

There are bound to be many who have been granted deferred action to also be on the pathway to permanent residence by being beneficiaries of approved I-130 or I-140 petitions. Unless one is being sponsored as an immediate relative, i.e. as a spouse, child or parent of a US citizen, and has also been admitted an inspected, filing an application for adjustment of status to permanent residence will not be possible for an individual who has failed to maintain a lawful status under INA § 245(a). Such individuals will have to depart the US to process their immigrant visas at a US consulate in their home countries. Although the grant of deferred action will stop unlawful presence from accruing, it does not erase any past unlawful presence. Thus, one who has accrued over one year of unlawful presence and departs the US in order to process for an immigrant visa will most likely face the 10 year bar under INA § 212(a)(9)(B)(i)(II). While some may be able to take advantage of the proposed provisional waiver rule, where one can apply in the US for a waiver before leaving the US, not all will be eligible under this new rule. A case in point is someone who is sponsored by an employer under the employment-based second preference, and who may not even have a qualifying relative to apply for the waiver of the 10 year bar.

We propose that the USCIS extend the holding of the Board of Immigration Appeals in Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) to beneficiaries of deferred action. In Arrabelly and Yerrabelly, the BIA held that an applicant for adjustment of status, who leaves the US pursuant to a grant of advance parole, has not effected a departure from the US in order to trigger the 10 year bar under INA § 212(a)(9)(B)(i)(II). If a beneficiary of deferred action is granted advance parole, this person’s trip outside the US under this advance parole ought not to be considered a departure. Such facts would square with Matterof Arrabelly and Yerrabelly if the individual returned back to the US under advance parole. However, here, the individual may likely return back on an immigrant visa and be admitted as a permanent resident. That might be hard to sell to the government – how can you apply for a visa at a consulate in a foreign country and still not leave USA? Still, this idea has merit as it is the initial “departure” under advance parole that would not be a trigger for the bar to reentry, not the subsequent admission as an immigrant. In the leaked July 2010 memorandum to USCIS Director Mayorkas, the suggestion is made that the USCIS “reexamine past interpretations of terms such as ‘departure’ and ‘seeking admission again’ within the context of unlawful presence and adjustment of status.” Using Matter of Arrabally and Yerrabelly in the manner we propose seeks to do just that. Once again, as with the concept of parole, we seek to build on past innovation to achieve future gain.

As an alternative we propose, as we did in The Tyranny of Priority Dates, that the government, in addition to the grant of deferred action, also grants parole in place on a nunc pro tunc or retroactive basis under INA 212(d)(5). For instance, the USCIS informally allows spouses of military personnel who would otherwise be unable to adjust under INA § 245(a) if they were neither “inspected and admitted or paroled” to apply for “parole in place.” The concept of parole in place was also proposed in the leaked memo. Interestingly, in this memo, a prime objective of granting parole in place was to avoid the need for consular processing of an immigrant visa application: “By granting PIP, USCIS can eliminate the need for qualified recipients to return to their home country for consular processing, particularly when doing so might trigger the bar to returning.” This would only be the case, however, where the adjustment applicant is married to a US citizen, or is the minor child or parent of a US citizen, and need not be barred due to lack of an inspection or admission. Because we advocate a much wider extension of parole in place, the need for retroactivity, both for the parole and companion employment authorization becomes readily apparent. The use of parole in place, while not common, is certainly not without precedent and, as the leaked memo recites, has been expansively utilized to promote family unity among military dependents. For our purposes, “applicants for admission who entered the US as minors without inspection” were singled out as a class for whom parole in place was singularly suitable.

Upon such a grant of parole in place retroactively, non-immediate relatives who have not maintained status may also be able to adjust status. Such a retroactive grant of parole, whether in the I-130 or I-140 context, would need to be accompanied by a retroactive grant of employment authorization in order to erase any prior unauthorized employment. We acknowledge that it may be more problematic for the individual to be eligible for adjustment of status through an I-140 employment-based petition rather than an I-130 petition, since INA § 245(c)(7), requires an additional showing of a lawful nonimmigrant status, in the case of an employment-based petition under INA § 203(b). Still, the grant of nunc pro tunc parole will wipe out unlawful presence, and thus this individual can leave the US and apply for the immigrant visa in the US Consulate in his or her home country without the risk of triggering the 3 or 10 year bar.

One conceptual difficulty is whether parole can be granted to an individual who is already admitted on a nonimmigrant visa but has overstayed. Since parole is not considered admission, it can be granted more readily to one who entered without inspection. But this impediment can be overcome: It may be possible for the government to rescind the grant of admission, and instead, replace it with the grant parole under INA § 212(d)(5). As an example, an individual who was admitted in B-2 status and is the beneficiary of an I-130 petition but whose B-2 status has expired can be required to report to DHS, who can retroactively rescind the grant of admission in B-2 status and be retroactively granted parole.

There may be other obstacles for individuals in removal proceedings or with removal orders, but those too can be easily overcome. If the individual is in removal proceedings, if he or she is also eligible for deferred action, such removal proceedings can be terminated and he or she can also receive a grant of nunc pro tunc parole, thus rendering him eligible for adjustment of status in the event that there is an approved I-130 or I-140 petition. Even a person who already has a removal order can seek to reopen the removal order through a joint or consent motion with the government for the purposes of reopening and terminating proceedings, and this person too could potentially file an adjustment application, if he or she is the beneficiary of an I-130 upon being granted nunc pro tunc parole, and the beneficiary likewise could travel overseas for consular processing without risking the 10 year bar.

We of course would welcome Congress to act and pass the DREAM Act, as well as Comprehensive Immigration Reform, so that this memorandum does not get reversed or discontinued in the event that a new Administration takes over from January 2013. However, until Congress does not act, the June 15, 2012 memo does provide welcome relief for young people, but it still leaves them in a limbo with only deferred action. The elephant in the room may be whether the USCIS has the capacity to deal with hundreds of thousands of requests for deferred action. In the absence of congressional action, the agency lacks the capacity to charge special fees for this purpose. Consequently, all relevant federal agencies, including ICE and CBP, must willingly but swiftly reassign existing personnel now devoted to less urgent tasks so that the President’s initiative of last Friday does not become a dead letter. Our proposal for an additional grant of nunc pro tunc parole in place to individuals who have already been conferred deferred action will at least allow them to enter the regular immigration system and hope to adjust status to permanent residence, or consular process, and thus on the path to citizenship, should they become the beneficiaries of approved family or employment-based petitions. Again, as we noted earlier, and as we noted in Tyranny of Priority Dates, we are not asking for the executive branch to create new forms of status. We are only asking for the Executive to remove barriers to the ability of otherwise deserving applicants for permanent residents to take advantage of the existing system. We want to emphasize there is nothing in the INA that prevents the immediate adoption of our recommendations just as there was nothing in the INA that prevented last Friday’s memorandum. We also want to emphasize that I-130’s and I-140s will still be necessary. We do not want to create a new system, only to allow the old one to work more effectively. The future is ours to shape. For those who lack faith, we remind them of Tennyson’s injunction in Ulysses: “Come my friends, ‘tis not too late to seek a newer world.”

A Pulitzer winning journalist and my client, 31-year-old Jose Antonio Vargas, revealed his undocumented status in a New York Times Magazine article, formed Define American and toured the country speaking out on the pressing need for a solution to the immigration problems of his youthful compatriots who, like him, are citizens except on paper.

Vargas and fellow DREAMers -- just hours before the fateful change was announced -- appeared on the cover of Time Magazine and in this moving video:

The task now falls to the Homeland Security Department's immigration components, U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE), to review the anticipated flood of cases for deferred-action eligibility and issue work permits to a population of DREAMers estimated by the Pew Hispanic Center at 1.4 million. Are they up to the job? The challenge will be daunting. No new money has been appropriated. Existing agency personnel cannot possibly receive training and handle the workload without a funding mechanism. Will the applicant tide overwhelm available resources? Can the foreseeable backlogs be avoided? How do those who want deferred action get it, given that DHS has consistently maintained that this act of prosecutorial discretion cannot be requested but must be conferred? Here's what should be done:

ICE and USCIS should publish regulations and OMB should approve them on an expedited basis. Many informal pronouncements have been issued since Friday. The White House released a transcription of the President's Rose Garden announcement. DHS Secretary Janet Napolitano published a memorandum to the heads of her component agencies, a press release and an FAQ. ICE issued an implementing memo. While helpful, these are no substitute for the publication of regulations that comply with the Administrative Procedure Act and a host of other federal laws requiring regulatory analyses and opportunities for public comment. As Leland Beck urges in the Federal Regulations Advisor blog, "[w]ithout a regulation, the fragility of DHS’ policy position is clear – as a regulation may only be changed by another regulation, so a policy pronouncement may be changed by the whim of another policy pronouncement." Given that presumptive GOP nominee Mitt Romney has declined to say whether a President Romney would reverse the DHS actions on DREAMers, the Office of Management and Budget (OMB) should insist that ICE and USCIS engage in formal rulemaking but insure that the process is completed within the 60 days mandated by President Obama and Secretary Napalitano.

USCIS should use the EAD application process as the platform for deferred action requests. USCIS already issues Employment Application Documents (EADs) to persons granted deferred action under the authority of 8 CFR § 274.12(c)(14). This regulation states that a foreign citizen "who has been granted deferred action, . . . [can receive an EAD] if the alien establishes an economic necessity for employment." The application is made on Form I-765 and requires a filing fee of $380 (although fee waivers are possible). Since Secretary Napolitano has announced the deferred-action criteria "to be considered" for persons in the defined DREAMer class, USCIS should treat the Secretary's directions as a presumptive grant of deferred action as to those who submit evidence to show economic hardship and satisfy the deferred-action standards (entry to the U.S. before age 16, no older than 30, presence here for five years, presence on 6-15-2012, background checks, and absence of disqualifying criminal history). By using the EAD application form to adjudicate deferred-action requests of persons never in removal proceedings, USCIS would streamline the process and receive $380 per application to pay for the cost of adjudication. In addition, ICE and USCIS should agree that USCIS -- as the adjudication agency -- should make a preliminary decision on deferred action, subject to an internal ICE veto, before approving or denying an EAD.

USCIS should deploy officers trained in adjustment of status to adjudicate the deferred action EAD applications. USCIS has trained adjudicators on hand to determine the key eligibility criteria to qualify for DREAMer classification. Comparable criteria, involving essentially the same analysis, apply under the green card application process known as adjustment of status for persons seeking forgiveness from ineligibility under Immigration and Nationality Act § 245(i). Given the unavailability or retrogression of most employment-based immigrant visa quotas that begins next month, these officers will likely have time on their hands quite soon. Additional adjudicators from the USCIS Fraud Detection and National Security Directorate (FDNS) -- once trained on DREAMer eligibility adjudications -- can be assigned to augment the adjustment adjudicators. If needed, USCIS can also hire and train more adjudicators -- assuming that $380 per EAD application is sufficient. If the current EAD filing fee is insufficient to cover the cost of deferred action EAD adjudications -- a proposition I doubt given my insider sources with knowledge of filing-fee economics -- USCIS can make its case by publishing a proposed rule seeking to justify a higher fee.

USCIS and ICE should apply the spirit of the new policy to deserving persons who fall outside its terms. There is no reason why the policy announced on Friday capped DREAMer eligibility below age 30 (other than that the age was reduced from less than 35 in the last failed Congressional effort). Authority for the exercise of prosecutorial discretion and the grant of deferred action still exists and can appropriately apply to many others because -- as Secretary Napolitano stated in her memo to agency leaders: "Our Nation's immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of these young people have already contributed to our country in significant ways. Prosecutorial discretion, which is used in so many other areas, is especially justified here."

Newly legal DREAMers, their supporters and the American people must push President Obama and Congress to enact Comprehensive Immigration Reform (CIR). As Fareed Zakaria has demonstrated in his compelling CNN special report, America's success in the global economy hinges on CIR. Like a balloon held under water, CIR must eventually emerge. Possibly ephemeral deferred action status and evanescent work permits are insufficient. They are revocable, and offer no path to citizenship and no route to full integration into American society. The undocumented parents of citizens and DREAMers alike also need to be allowed out of the shadows. We must reform a system that New York's Mayor Michael Bloomberg calls "national suicide."

President Obama announced a significant change in its previously announced prosecutorial discretion program. Effective immediately (although without a process to use yet), any person who meets the following criteria can be considered for an exercise of prosecutorial discretion, can live free of the fear of deportation, can get a work permit:

came to the United States under the age of sixteen;

has continuously resided in the United States for a least five years preceding June 15, 2012, and is present in the United States on June 15, 2012;

is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;

has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and

is not above the age of thirty.

Here is the really important part: No individual should receive deferred action under this policy unless they first pass a background check and requests for relief pursuant to this memorandum are to be decided on a case by case basis. DHS cannot provide any assurance that relief will be granted in all cases. That means that if you apply and are denied, you can be placed in removal proceedings, OR if a new President comes in and decides to change the policy, you can be put into removal proceedings. How Will People Apply?

The Secretary of Homeland Security has ordered Immigration and Customes Enforcement (ICE), U.S. Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS) to do the following for the following types of people:1. With respect to individuals who meet the above criteria, ICE and CBP should immediately exercise their discretion, on an individual basis, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States.

USCIS is instructed to implement this memorandum consistent with its existing guidanceregarding the issuance of notices to appear.

This means that there is NOTHING to apply for today. This will likely take, at least for USCIS at least 60 days to put into effect. Do NOT trust Notarios, and understand there is nothing to file now.

2. With respect to individuals who are in removal proceedings but not yet subject to a final order of removal, and who meet the above criteria:

ICE should exercise prosecutorial discretion, on an individual basis, for individuals who meet the above criteria by deferring action for a period of two years, subject to renewal,in order to prevent low priority individuals from being removed from the United States.

ICE is instructed to use its Office of the Public Advocate to permit individuals who believe they meet the above criteria to identify themselves through a clear and efficient process.

ICE is directed to begin implementing this process within 60 days of the date of this memorandum.

ICE is also instructed to immediately begin the process of deferring action against individuals who meet the above criteria whose cases have already been identified through the ongoing review of pending cases before the Executive Office for Immigration Review.

3. With respect to the individuals who are not currently in removal proceedings and meet the above criteria, and pass a background check:

USCIS should establish a clear and efficient process for exercising prosecutorialdiscretion, on an individual basis, by deferring action against individuals who meet the above criteria and are at least 15 years old, for a period of two years, subject to renewal, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States.

The USCIS process shall also be available to individuals subject to a final order of removal regardless of their age.

USCIS is directed to begin implementing this process within 60 days of the date of this memorandum.

For individuals who are granted deferred action by either ICE or USCIS, USCIS must accept applications to determine whether these individuals qualify for work authorization during this period of deferred action.So, what should you do right now? First, make an appointment and go see an experienced attorney, do NOT go to a Notario! Second, Take a picture with a newspaper from June 15, 2012 to document your presence in the United States today. Third, begin collecting evidence of your physical presence in the United States for the last five years, for most folks this will be through school records and tax returns; Finally, relax! There is no ability to apply immediately. At least for those not in removal proceedings there is no set process yet to follow.

In Matter of O. Vasquez, 25 I&N Dec. 817 (BIA 2012), the first precedential decision on this issue, the Board of Immigration Appeals has clarified the “sought to acquire” provision under the Child Status Protection Act (CSPA). The CSPA artificially freezes the age of a child below 21 years of age so that he or she is not deprived of permanent residency when the parent is granted the same status. One of the requirements is for the child to seek permanent residency within one year of visa availability. Often times, a CSPA protected child falls through the cracks by failing to meet the prevailing rigid filing requirements within the one-year deadline. Thus, the meaning of the term “sought to acquire” permanent residency has been hotly litigated in recent times. Does it encompass only a filing of an application or can it encompass something less than a filing of an application for immigration status?

According to the BIA in Matter of O. Vazquez, an alien may satisfy the “sought to acquire” provision of section 203(h)(1)(A) of the Immigration and Nationality Act (“Act”) by filing an application for adjustment of status or by showing that there are other extraordinary circumstances in the case, particularly those where the failure to timely file was due to circumstances beyond the alien’s control. The BIA further elaborated that the “sought to acquire” requirement could still be met if the applicant filed an adjustment application, but was rejected for technical reasons, such as the absence of a signature. With respect to a showing of extraordinary circumstances, the BIA indicated that an applicant could show that he or she paid an attorney to prepare an application prior to the one year deadline, but the attorney then failed to take the ministerial step of actually filing the application, thus effectively depriving the aged out child from the protection of the CSPA for no fault of its own.

While the BIA did provide examples of “sought to acquire” just short of a filing; unfortunately, the BIA’s interpretation in Matter of O. Vazquez is more restrictive than its earlier interpretations in unpublished decisions discussed in a prior blog, BIA Continues To Reaffirm Broad “Sought To Acquire” Standard Under CSPA. The BIA stopped short of holding that the term can encompass other actions not associated with the filing of an adjustment application, such as seeking the advice of an attorney or other similar sorts of efforts. In Matter of O. Vazquez, the “aged out” child argued that he sought to acquire permanent residency by consulting a notario organization within one year of the visa availability. The BIA held that such an action did not fall under the “sought to acquire” definition. Given that the CSPA is a remedial statute to ameliorate the hardships caused to children who age out, the facts in this case were also sympathetic as the alien was wrongly advised by an organization not authorized to practice law in the first place, and thus deprived of the chance to be protected under the CSPA.

As a background, INA §203(h), introduced by Section 3 of the CSPA, provides the formula for determining the age of a derivative child in a preference petition even if the child is older than 21 years. To qualify as a child under INA §101(b)(1), one must be below the age of 21 and unmarried. The age is determined by taking the age of the alien on the date that a visa first became available (i.e. the date on which the priority date became current and the petition was approved, whichever came later) and subtracting the time it took to adjudicate the petition (time from petition filing to petition approval). Based on this formula, if the child’s age falls below 21, the child is protected under the CSPA. Specifically, §203(h)(1)(A) also requires the alien to have “sought to acquire” LPR status within one year of visa availability. It is the interpretation of the term “sought to acquire” that was the subject of the Board’s holding in Matter of O. Vazquez.

The BIA unfortunately arrived at this more restrictive interpretation by agreeing with DHS’s position that the reason for Congress not including the term “filed” is because § 203(h) applies to the Department of Homeland Security (DHS) and Department of State (DOS), both of which adjudicate requests for immigration status. The DHS adjudicates applications for adjustment of status from within the US while the DOS adjudicates applications for immigrant visas from outside the US. Under DOS immigrant visa processes, one generally does not “file” an immigrant visa application, DS-230, but rather, the DOS regulations use the word “submit” or “submission” rather than “file” when referring to a DS-230 visa application. See 22 C.F.R. § 42.63 and 22 C.F.R. § 42.63(c). The “filing” of an application in DOS occurs after it is submitted and much later in the process, the BIA noted. See 22 CFR § 42.67(b). According to the BIA, it was due to the difference in the usage of terms in the DOS and DHS regulations that Congress compelled Congress to use the term “sought to acquire” permanent residency rather than to allow for broader actions such as consulting with a notario organization, as was done in Matter of O. Vasquez, to satisfy the “sought to acquire” definition.

Still, it can be argued that the discussion in Matter of O. Vazquez of the use of the word “filing” in DOS regulations, and the multi-step DOS process more generally, does seem to leave room for the possibility that something other than submission of a DS-230 can qualify as seeking to acquire permanent residence for CSPA purposes. Matter of O. Vazquez holds that “it is reasonable to expect the proper filing of an application, when it comes to DHS cases, as a way to unquestionably satisfy the ‘sought to acquire’ element of the Act.” 25 I&N Dec. at 820. This holding is limited by its terms to “DHS cases”, in which the formal application process is in the ordinary case more unified into a single step of filing an application form (or that single filing step plus an interview). The taking of any substantial step in the multistage DOS immigrant-visa process, such as the payment of the immigrant visa fee, as we pointed out in State Department Takes Broader View Of “Sought To Acquire” Provision Under CSPA, or the making of a written request that a particular derivative child be added to a consular case, should arguably still be sufficient to meet the “sought to acquire” requirement even under Matter of O. Vasquez.

Another aspect worth exploring further may be footnote 3 of the decision, on page 821. The BIA analogizes its “extraordinary circumstances” standard to that applicable to termination-of-registration cases under INA 203(g). In practice, DOS has not applied the 203(g) standard as strictly as, say, some IJs apply the asylum one-year “extraordinary circumstances” standard. If that is so, the linkage of the new Matter of O. Vazquez CSPA sought-to-acquire standard to the 203(g) standard may be significant: the Matter of O. Vazquez standard for extraordinary circumstances is apparently supposed to be interpreted no more strictly than 203(g).

In the view of this author, Congress probably intended the “sought to acquire” requirement to apply more broadly than interpreted in Matter of O. Vazquez. In a prior unpublished decision In re Jose Jesus Murillo, A099 252 007 (October 6, 2010), the BIA interpreted the legislative history behind the CSPA as being expansive, which is worth reproducing here:

The congressional. intent in enacting the CSPA was to "bring families together" (Rep. Sensenbrenner, 148 Congo Rec. H4989-01, H49991, July 22, 2002) and to "provide relief to children who lose out when INS takes too long to process their adjustment of status applications"(Rep. Gekas, id. at R4992); see also, Rep. Jackson-Lee, "where we can correct situations to bring families together, this is extremely important.'.' ld. atH4991. In enacting the CSPA, Congress expressed its concern that alien children "through no fault of their own, lose the opportunity to obtain immediate relative status." H.R. Rep. 107-45, H.R. Rep. No.4 5, I 07th Cong., 1st Sess. 2001, reprinted in 2002 U.S.C.C.A.N. 640, 641 (Apr. 20, 2001). Indeed, the United States Court of Appeals for the Ninth Circuit has held that the CSPA should "be construed so as to provide expansive relief to children of United State citizens and permanent residents." Padash v. INS,358 F.3d 1161, 1172 (9th Cir. 2004).

However, since Matter of O. Vazquez is a precedential decision, we will need to now live and work with it when dealing with instances under which our clients have “sought to acquire” permanent residency in order to protect their age under the CSPA.

Why has the L-1B visa for persons with "specialized knowledge" -- a category readily available to "Intracompany Transferees" since 1970 -- suddenly become virtually unattainable if the foreign citizen (especially if coming from India) will be stationed at a consulting customer's worksite?

Why does an Administration that claims to be a friend of job-creating businesses cause projects to be delayed or cancelled, contracts to be breached and American job opportunities that would have been created to become so much collateral damage?

The war's drone attacks have increased dramatically since last year (although early casualties have been inflicted since at least 2008 when the USCIS Administrative Appeals Office issued its supposedly "non-precedent" GST decision, which offered eager adjudicators a pretext to shoot down the expansive interpretation of specialized knowledge in place since Immigration Act of 1990 and, in effect, extralegally reserved the L-1B category exclusively to persons with "unique knowledge".

Director Mayorkas -- who I lauded recently in this blog -- addressed the ACIP's audience, promising that draft guidance (allowing public comment before becoming final) would be released "any day." In response to a question I posed expressing concern over the immigration agency's historic "antipathy toward business," he denied that a war was underway, or that any anti-business attitude prevailed among adjudicators.

“I have not found an institutional antipathy towards business or to any particular community,” he said in response to an audience member's question regarding the level of support USCIS will give to explicitly pro-business policies. “What I have seen is interpretations of law that don't necessarily understand sometimes the way business works and the challenges that businesses face and what the purpose of the particular visa category is.” Source: Elliott Dube, Reporter, Bureau of National Affairs.

As we await the promised L-1B guidance on specialized knowledge, insiders report that USCIS may buckle under the weight of this war of letters and try to restrict the category notwithstanding any relevant change in law or regulation since 1990. They suggest that the agency might try to find dry gunpowder in the L-1 Visa Reform Act of 2004 to shoot down the broad definition of specialized knowledge.

That law, however, offers USCIS no basis to restrict specialized knowledge; it merely prevents the stationing of an L-1B worker primarily at a worksite owned or controlled by another entity where either (a) the worksite entity controls the work of the petitioner's employee; or (b) the placement is “essentially an arrangement to provide labor for hire” for the worksite entity rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary.

The first part of the change duplicates existing law. Under the doctrine of "deemed employment," if the worksite entity were to control the individual's work while knowing that it had not petitioned USCIS to employ a foreign worker, the act of deemed employment would violate the Immigration Reform and Control Act of 1986. The second part of the 2004 change is also duplicative. A foreign individual who participated in “an arrangement to provide [the worksite entity with] labor for hire” would not meet the definition of specialized knowledge and thus could never acquire an L-1B visa.

As USCIS recognized in its implementing guidance, nothing in the L-1 Visa Reform Act of 2004 changed the definition of specialized knowledge:

[The] alien worker must be a specialized knowledge worker. The term “specialized knowledge” should be familiar to adjudicators and is defined at 8 CFR 214.2(l)(1)(D) . . . .

So, perched in our bunkers waiting for this war's next wave -- a battle for talent, a battle to enable projects that will create jobs for Americans -- anxious non-belligerents ask, will it be bombs away or bombs put away?

The federal government regularly auctions airwaves and drilling leases. Should it also auction humans? This is the startling question posed recently at a May 15, 2012 Hamilton Project conference in a paper, a slide presentation and the transcript of remarks offered by Giovanni Peri, an economics professor at the University of California (Davis). Prof. Peri provides an intriguing, market-based proposal ("Rationalizing U.S. Immigration Policy: Reforms for Simplicity, Fairness, and Economic Growth") -- in three phases -- to reform America’s sputtering immigration system.

Surprisingly to me, a well-griddled and grizzled immigration lawyer, conference participants expressed largely enthusiastic support for his proposal, but doubted that Congress has the near-term will or ability to tackle comprehensive immigration reform. In my view, while Prof. Peri’s description of current immigration dysfunctionalities is spot on, his ideas for a better system are replete with moral dilemmas, inequities and logistical impediments.

In Phase One, Peri would have the Department of Commerce supervise (or outsource) two online auctions of three-year permits allowing businesses offering the highest bids to employ foreign citizens on provisional U.S. visas. One auction would be for low skilled immigrants (similar to the H-2 visa) to fill jobs that Americans tend to shun; the other would be for H-1B workers in specialty occupations (and possibly also TN workers from Mexico and Canada under NAFTA and L-1 intracompany transferees). The number of permits to be auctioned would be based on average annual usage in the corresponding nonimmigrant categories over the prior ten years. Permits could be traded in a secondary market to hire a replacement foreign worker, or resold for the unexpired term, if a foreign worker invokes the right of job portability. Peri says he would also protect small businesses by allocating a minimum number of permits to them or by capping the number of permits that any single employer could buy via auction.

Phase Two would extend the auction to all other “labor-based” nonimmigrant and green card categories. Phase Three would take into account the number of foreign citizens who have entered under the labor-based categories and then adjust (“rebalance”) the family-based categories (presumably because fewer family-based immigrants will be needed). Along the way, he would create a path to legalization for the 11.5 million undocumented foreigners in the U.S., and use funds from the permits to enhance E-Verify, protect the border, pay for Commerce Department auction expenses, and allow the Labor Department to conduct more immigration audits, given that the agency would no longer be supervising tests of worker availability under the temporary and permanent labor certification programs.

Prof. Peri does not dub the monies paid through the Commerce Department auctions as new taxes but that’s in effect what they are. I suspect that Grover Norquist and his obeisant promise-keepers might agree that a levy imposed on companies for the privilege of employing a foreign worker seems just as much a “tax” as the gas-guzzler tax that must be paid for the privilege of buying a fuel-inefficient luxury vehicles. More troubling to me, however, is that Prof. Peri’s proposal and those of other auction proponents seem too reminiscent of 18th Century slave auctions except that the auctioned permits convey not ownership but a temporary right to import a foreign worker for up to three years as long as employer and employee remain satisfied with the arrangement.

I share Peri’s interest in market-based solutions, but believe market-testing has already proven that -- at least in the nonimmigrant sector -- artificial visa quotas are not necessary. History shows (as Peri notes) that when the economy sizzles, the annual allotment of quota-based visas has been consumed in days, but when it is frail, the quota supply has not run dry.

There are better ways of improving the immigration system that nonetheless promote Peri’s goals of simplicity, fairness and economic growth. Here are a few:

1. Simplicity. By reducing unneeded visa categories and consolidating immigration authority in one department, the unnecessarily byzantine complexity of immigration laws could be replaced by a far more rational system.

Each employment-based nonimmigrant and immigrant visa category was created for a specific purpose, but many categories overlap. Sometimes the overlap is beneficial, e.g., the B-1 in lieu of H-1 subcategory of business visitor serves as a safety valve when H-1B quota numbers have run out and provides a ready alternative to the cumbersome and costly H-1B category for short-term entrants who will remain employed abroad and not be hired by a U.S. employer. But many times the duplicative categories make little sense. We don’t really need four types of intern/trainee categories: a J-1 intern/trainee, an H-3 trainee, and a B-1 in lieu of H-3 trainee and a Q-1 cultural trainee.

We don’t need multiple categories of dependent family members of principal work-visa holder (H-4, L-2, E-1, E-2, E-3 ad infinitum); they should be grouped under a single dependent category with spousal employment rights.

2. Fairness. By insuring procedural due process, consistency and transparency, our immigration system would be less a trap for the unwary and unlawyered, and more an example to the world.

Congress should declare an Immigration Stakeholder Bill of Rights and Responsibilities that, wherever possible, would apply uniformly across all immigration categories, and allow for attorneys fees and costs to be reimbursed if a party claiming material infringement of rights prevails in an administrative claim against the infringer, whether that be the government or an employer.

There is no reason why applicants for adjustment to green-card status in H and L visa categories may travel on their existing visas and thus are relieved of the burden of applying for advance parole travel authorization while those in E, F, M, J, O and other categories are treated as having abandoned their adjustment applications if they leave the country without advance parole and reenter on their valid nonimmigrant visas.

There is no reason why EB-5 investors and Special Immigrant religious workers may not apply for adjustment of status unless they have an approved immigrant visa petition, while virtually all other applicants can apply for adjustment concurrently with the filing of an unapproved immigrant visa petition.

As noted, all spouses of principals on work visas should be given open-market employment authorization, not just E and L spouses.

The fault or adverse actions of others should not be attributed to innocent parties. DREAMers brought here through the violations of their parents should be given avenues for relief. A worker faultlessly fulfilling the terms of a particular employment-based visa should not lose status when his/her employer terminates employment. Adjustment of status portability should be a benefit enjoyed by the employer who sponsored the worker’s labor certification application as well as the worker/beneficiary (the “cell-mitosis” theory of portability that I’ve espoused before).

Unfair and unevenly applied legal presumptions, such as the presumption of immigrant intent, should be eliminated; instead, applicants for visas and immigration benefits must merely be required to establish eligibility for the visa or benefit sought based on the facts and law.

The newly created Article III Federal Immigration Court should conduct de novo hearings and review appeals of denials of visas, waivers and applications for extension, change or adjustment of status without any deference accorded to the agency because of its presumed expertise but decide the case solely on the facts and law.

3. Economic Growth. In addition to the usual recommendations (elimination of per-country immigrant visa quotas, expedited green cards for STEM graduates, etc.), there are many ways that immigration can spur economic growth:

Just like the spouses of U.S. citizens, immediate family members of lawful permanent residents (who can provide support to sponsored relatives at 200% of the federal poverty guidelines) should not be subject to immigrant visa quotas.

Dependents of employment-based immigrants should not be charged against the annual immigrant visa quota.

Congress should enact the $$$ Visa, allowing three-year, renewable periods of authorized stay and work permission, for foreign citizens who purchase homes in the U.S. valued at $500,000 or more.

Congress should pass a law granting the newly established Department of Immigration authority to conduct an annual immigration “race to the top” whereby states who propose market-based immigration incentives that are likely to promote significant local hiring of Americans or investment in the state are awarded a set number of work visas and green cards to confer on grantees.

Family-owned businesses with real jobs for real money should be allowed to bring in their relatives from abroad to work in those jobs as a means of promoting family values and immigrant entrepreneurship.

Congress should create a Golden-Spoon/Retirees’ Green Card for high-net-worth immigrants who have no desire to work in the U.S. but who purchase and hold at least $3 million worth of U.S. Treasury bonds.

Congress should authorize a Create-American-Jobs program that would provide blanket approvals and expedited adjudications of applications seeking immigration benefits for U.S.-based with a proven track record of using the immigration system to create jobs in the United States.

Just like the anticipated Congressional reaction to Prof. Peri’s proposals, the realist in me knows that my suggested immigration policy reforms will likewise be rejected in the near term. That said, he and I are not “two wild and crazy guys” unfamiliar with the way things are done here. We merely believe that later, or preferably sooner, our people and our leaders will come to see that the immigration status quo is “broke" and desperately needs "fixin’.”

by Cyrus D. Mehta, ABIL LawyerThe Insightful Immigration BlogU.S. Citizenship and Immigration Services' (USCIS) Administrative Appeals Office (AAO) issued a binding precedent decision in Matter of Skirball Cultural Center, 25 I&N Dec. 799 (AAO 2012) addressing the term "culturally unique" and its significance in adjudicating P-3 visa petitions for performing artists and entertainers. This decision is significant in light of a growing trend where the culturally unique artistic tradition of one country or ethnicity is influenced by artistic traditions from elsewhere. For instance, musicians trained in Indian classical music have incorporated Western jazz and rock influences. The most famous example of such a fusion band was Shakti, which incorporated South Indian Carnatic music and jazz elements, featuring guitarist John McLaughlin, South Indian violinist L. Shankar and Zakir Hussain on tabla and T.H Vikku Vinayakram on the ghatam (an earthen pot). Examples of hybrid groups abound all over the world, and a contemporary example is Afro Celt Sound Systems, which is a hybrid of African and Celt music. Afrobeat is another classic example of a fusion genre that originally fused American funk music with African rhythms, and its main exponent has been Fela Kuti. Until this decision, there was a risk that such groups would not be considered to be “culturally unique” as they did not incorporate the music which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons.

The Skirball Cultural Center filed a P-3 nonimmigrant petition on behalf of a musical group from Argentina that was denied a performing artists' visa for failing to establish that the group's performance was "culturally unique" as required for this visa classification. USCIS noted that "due to the unusually complex and novel issue and the likelihood that the same issue could arise in future decisions, the decision was recommended for review."

The AAO approved the petition after its review of the entire record, which included expert written testimony and corroborating evidence on behalf of the musical group. USCIS said that the regulatory definition of "culturally unique" requires the agency to make a case-by-case factual determination. The decision clarifies that a "culturally unique" style of art or entertainment is not limited to traditional art forms, but may include artistic expression that is deemed to be a hybrid or fusion of more than one culture or region.

The petitioner had sought classification of the beneficiaries as P-3 entertainers for a period of approximately six weeks. The beneficiaries were musicians in the group known as Orquesta Kef. The ensemble of seven musicians from Argentina had been performing together for between four and eight years, according to a letter dated September 2009, and performed music that blended klezmer (Jewish music of Eastern Europe) with Latin and South American influences. The group's biography stated that the band had developed "its own and unique musical style" based on "the millenary force of tradition and the powerful emotion of the Jewish culture, mixed in with Latin American sounds." The petitioner also provided a letter from an associate professor at the University of Southern California's Annenberg School for Communication supporting the band's claim to cultural uniqueness, among other submitted expert opinion letters and published materials.

The decision noted that Congress did not define the term "culturally unique" and the former Immigration and Naturalization Service (now USCIS) defined it in regulations as "a style of artistic expression, methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons." See 8 C.F.R. § 214.2(p)(3)(2012).

In her decision denying the petition, the director stated that a hybrid or fusion style of music "cannot be considered culturally unique to one particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons."

The AAO said that the director's reasoning was not supported by the record, noting:

[T]he fact that the regulatory definition allows its application to an unspecified "group of persons" makes allowances for beneficiaries whose unique artistic expression crosses regional, ethnic, or other boundaries. While a style of artistic expression must be exclusive to an identifiable people or territory to qualify under the regulations, the idea of "culture" is not static and must allow for adaptation or transformation over time and across geographic boundaries. The term “group of persons” gives the regulatory definition a great deal of flexibility and allows for the emergence of distinct subcultures. Furthermore, the nature of the regulatory definition of “culturally unique” requires USCIS to make a case-by-case factual determination based on the agency’s expertise and discretion. Of course, the petitioner bears the burden of establishing by a preponderance of the evidence that the beneficiaries’ artistic expression, while drawing from diverse influences, is unique to an identifiable group of persons with a distinct culture. To determine whether the beneficiaries’ artistic expression is unique, the director must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the entire record.

The AAO pointed out that the director's decision failed to note that the beneficiary group was a klezmer band and "seemed to struggle to identify the nature of the group's musical performance, focusing instead on the group's musical influences. Here, the evidence establishes that the beneficiaries' music is, first and foremost, Jewish klezmer music that has been uniquely fused with traditional Argentine musical styles." The AAO said it found particularly persuasive an expert opinion explaining that klezmer music, “while often associated with ethnically Jewish people, is an artistic form that has migrated and is continually mixed with and influenced by other cultures." The AAO also noted the fact that the beneficiaries were South Americans born to Eastern European immigrants and therefore were influenced by both cultures to create something new and unique to their experience. All the opinion letters submitted also recognized the existence of a distinct Jewish Argentine culture and identity that was expressed in the beneficiary group's music. Furthermore, the AAO noted, the published articles submitted recognized a musical movement in Argentina that fuses Argentine styles with influences from Jewish music and other Eastern European styles, and the articles and opinion letters placed the beneficiary group at the forefront of this trend.

Accordingly, the AAO found that the petitioner had established by a preponderance of the evidence that the modern South American klezmer music performed by the beneficiary group was representative of the Jewish culture of the beneficiaries' home country of Argentina and that the group's musical performance therefore fell within the regulatory definition of "culturally unique." The AAO added that the petitioner had submitted an itinerary showing that the beneficiary group would be performing at Jewish cultural centers and temples during its U.S. tour, which provided further evidence that the performances would be culturally unique events.

Matter of Skirball Cultural Center remarkably recognizes the significance of crossover cultural trends and that “the idea of culture is not static,” which is increasing in our globalized world, where people have access to music from anywhere on an iPhone and have learned to enjoy fusion and hybrid forms. The favorable impact of this decision can extend to other art forms such as dance and drama too. Thanks to this decision, audiences in America need not fear of being deprived of hearing their favorite fusion bands live!